Petition for Writ of Certiorari — Jenkins v. Indiana

Supreme Court, U.S.

i. NO. Fi LE D

\

931 8 6 5 MAY 2 3 1994

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

RICKEY JENKINS,

Petitioner

versus

STATE OF INDIANA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

William Van Der Pol Jr.

COUNSEL FOR PETITIONER

P.O. Box 1436

Martinsville, IN 46151

(317) 349-0362

-

QUESTIONS PRESENTED FOR REVIEW

I. Whether the Trial Court’s error in

refusing to permit the Defendant to present

past habitual sexual practices of the

victim as exculpatory evidence violates the

Defendant’s rights under the Compulsory

Process Clause and the Confrontation Clause

of the Sixth Amendment.

II. Whether the Trial Court’s error in

applying the Indiana Rape Shield Statute

I.C. 35-37-4-4 to a deceased victim

violated the Due Process Clause of the

Fourteenth Amendment and the 6th Amendment

Right of Cross-Examination.

III. Whether the Trial Court permitting

the FBI Supervisor to testify concerning

D.N.A. test results, without requiring

antecedent testimony of the Technician who

actually preformed the test, violated

defendant’s Constitutional right of

Confrontation and Cross-Examination of the

Sixth Amendment.

Iv. Whether the Trial Court’s error in

allowing the introduction of the

Defendant’s statements after he had

informed the police that he no longer

wished to speak with them violated the

Defendant’s Fifth Amendment Right against

Self-Incrimination.

ii

Cee sated

LIST OF PARTIES TO PROCEEDINGS

Rickey Jenkins, Appellant

c/o William Van Der Pol Jr.

P.O. Box 1799

Martinsville, Indiana 46151

(317)349-0362

State of Indiana, Appellee

Pamela Carter

Attorney General of Indiana

State Office Building

Fifth Floor

Indianapolis, Indiana 46204

(317)232-6226

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....-ccccncccsccces i

PARTIES TO THE PROCEEDING ......... iii

TABLE OF CONTENTS) ..cccccccccccscccecs iv

TABLE OF AUTHORITIES ..ccccccccccccs vi

CITATION TO OFFICIAL DECISIONS ...... 1

JURISDICTIONAL GROUNDS) ...-eeeeeecees 1

RECITATION OF PERTINENT STATUTES

AND CONSTITUTIONAL PROVISIONS ..... 2

STATEMENT OF THE CASE) ..ccccccccecces 3

ARGUMENT

I. WHETHER THE TRIAL COURT’S

ERROR IN REFUSING TO PERMIT THE

DEFENDANT TO PRESENT PAST

HABITUAL SEXUAL PRACTICES OF

THE VICTIM AS EXCULPATORY

EVIDENCE VIOLATES THE

DEFENDANT’S RIGHTS UNDER THE

COMPULSORY PROCESS CLAUSE AND

THE CONFRONTATION CLAUSE OF

THE SIXTH AMENDMENT ........222-- 14

II. WHETHER THE TRIAL COURT’S

ERROR IN APPLYING THE INDIANA

RAPE SHIELD STATUTE I.C.

35-37-4-4 TO A DECEASED VICTIM

VIOLATED THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT

iv

AND THE SIXTH AMENDMENT RIGHT

OF CROSS-EXAMINATION ........... 24

III. WHETHER THE TRIAL COURT

PERMITTING THE FBI SUPERVISOR

TO TESTIFY CONCERNING DNA TEST

RESULTS, WITHOUT REQUIRING

ANTECEDENT TESTIMONY OF THE

TECHNICIAN WHO ACTUALLY PREFORMED

THE TEST, VIOLATED THE

DEFENDANT ’S CONSTITUTIONAL RIGHT

OF CONFRONTATION AND CROSS-

EXAMINATION CRCRORORNHO ORO 006400 27

IV. WHETHER THE TRIAL COURT

ERROR IN ALLOWING THE

INTRODUCTION OF THE DEFENDANT’S

STATEMENTS AFTER HE HAD INFORMED

THE POLICE THAT HE NO LONGER

WISHED TO SPEAK WITH THEM

VIOLATED THE DEFENDANT’S FIFTH

AMENDMENT RIGHT AGAINST SELF-

We Sacsbecceaess sc. 32

eect eee LEE TET TET EO Peres ihe 36

Cases

Berger v. California, 393 U.S. 314,

89 S.Ct. 540, 21 L.Ed.2d. 508,

(1969) .ccccccccccccceccecs renee © @ 26,27

Chambers v. Mississippi, 410 U.S. 284,

93 S.Ct. 1038, 35 L.Ed.2d. 297,

Pee so bob ceedonbanehenaneee 17,18,26,27

Commonwealth v. Appenzeller, 44 Crim. L.

Rep. (BNA) 2161 (Pa. Super. Ct., Nov 2,

1988), withdrawn Jan. 17, 1989, but see

46 Crim. L. Rep. (BNA) 1104 (Pa. Super.

Ct., en banc, October 16, 1989) ....... 20

Coy v. Iowa, 487 U.S. 1012, 108 S.Ct.

2798, 101 L.Ed.2d 857, (1988) ....... 29

Davis v. Alaska, 415 U.S. 308, 94

S.Ct 1105, 39 L.Ed.2d 347, (1974) .. 18,19

Green v. California, 399 U.S. 149, 90

S.Ct. 1930, 26 L.Ed.2d 489, (1970) ... 30

Maryland v. Craig, 497 U.S. 836, 110

S.Ct. 3157, 111 L.Ed.2d 666,

(1990) S@e@eeqeeqee@eIe@eqeePteeweteweweeEeeeeeet & eS e S&S 26,30,31

Miranda v. Arizona, 384 U.S. 436,

86 S.Ct.1602, 16 L.Ed.2d 694

(1966) a oo oe. oe. ae ee ee eee ee ee me f F ££ Fe SB re © © 34,35

Olden v. Kentucky, 488 U.S. 227,

109 S.Ct. 480, 102 L.Ed.2d 513,

(1988) ne eeweees et eee et © © © *enerinveeeeeneees # . 19,20

vi

, 483 U.S. 44, 97

S.Ct. 37, 107 L.Ed.2ad 2704, (1987) ... 18

, 121 N.H. 53, 426

OeMPN MND beacccccecccecna, » 21,22

, 558 A.2d 706, (Me.

7s Geie MEY Rebun és Oe é cic daca eevee 22,23

, 148 Wis.2d 190,

434 N.W.2d 807, nN 66btenb ed ned a 20,21

, 756 F. Supp. 1137,

(N.D. of POE MED wtécenianeedecans 25

, 3 F.3d. 1133, (7th.

Cif ss 1993) eeeeeeeeeeeees eseeees fee @ @ «© 23

, 388 U.S. 14,

87 S.Ct. 1920, 18 L.Ed.2d. 1019,

(1967) PM TSER PEP PT YY eee -- 16,17,18

U.S. Constitution, Amendment VI ..... 28

Other Authorities

J. IMWINKELRIED, EXCULPATORY EVIDENCE,

(1990) ~ = @ OPPO AORIEOH6666 66 OBE oe 16

P. WESTEN,

CLAUSE, 73 MICH. L. REV. 71 (1974) ... 16

\ ae

vii

CITATION TO OFFICIAL REPORT OF OPINIONS

indiana Supreme Court:

627 N.E.2d 789

caine bend cs

San ieee coe ae

Re-Hearing:

627 N.E.2d 789

JURISDICTIONAL GROUNDS FOR WRIT OF CERTIORARI

Dat ; ) . decial . t] Indi

Supreme Court:

December 20, 1993

Hearing:

March 1, 1994

review:

28 U.S.C. § 1257

VERBATIM RECITATION OF PERTINENT STATUTES

AND CONSTITUTIONAL PROVISIONS

I.C, 35-37-4-4

(verbatim reproduction contained in

Appendix)

nite nt V

(verbatim reproduction contained in

Appendix)

United States Constitution, Amendment VI

(verbatim reproduction contained in

Appendix)

nited Stat LO Vv

(verbatim reproduction contained in

Appendix)

STATEMENT OF THE CASE

On September 16, 1991, the body of a

young lady was found in a ditch in northern

Morgan County. (R. 2906). Numerous

injuries were apparent on the victim, and

there was blood, hair and a tire track in

the gravel roadway. (R. 2906-2910, 2913).

Upon raising the shirt of the victim, a

bruise in the form of a tire track was

observed across the abdomen of the victim.

(R. 2918).

After a news broadcast from the scene

describing the young lady, the young lady

was tentatively identified as Jennie

Whitman via a telephone call from her

mother, Caroline Whitman. (R. 2929).

Detectives Lang and Betts went to the home

of the victim in Indianapolis, and

interviewed the mother. (R. 2932). The

mother indicated that she had not seen her

daughter since the preceding evening. (R.

2933). Caroline Whitman indicated that the

victim had fled from her car, and that she

assumed that she had gone to see the

Defendant and his girlfriend, Alene Kingery

since she had indicated a desire to speak

with them without Caroline being present.

(R. 2935).

Caroline further indicated that a

number of telephone calls had occurred

during the early morning hours with the

defendant concerning her daughter. (R.

2936). In one of the conversations,

Caroline indicated that the Defendant had

said that he had dropped the victim off at

Starvin Marvin, a gas station near the

victim’s home. (R. 2940).

The Detectives then went to the

Defendant’s home to interview the Defendant

i 9 LEER

and Alene Kingery. (R. 2956). During this

interview, the Alene indicated that the

victim had arrived at her home at

approximately 9:30 P.M. and that she and

the defendant had dropped the victim off at

the Starvin Marvin at approximately 10:30.

(R. 2960-2962). Alene further stated that

she, the defendant, and Caroline had

searched for the victim for a number of

hours on the preceding evening and early

morning. (R. 2967).

The Detectives then interviewed the

Defendant. (R. 2971). The defendant told

a story similar to that of Alene. (R.

2972-2976). Detective Lang then inspected

the Defendant’s vehicle to see if the tire

tread matched the bruising that he had

observed on the body of the victim. (R.

2981). Upon looking at the car, he

observed a reddish substance on the left

=

rocker panel of the car which he believed

to be blood. (R. 2982).

Defendant was then advised of his

Miranda rights. (R. 2983). The officers

then believed the Defendant to be a

suspect. (R. 2984). The defendant

consented to a search of his car. (R.

2986). Detective Lang then left the car to

speak with the Prosecutor, and at that

point the defendant was handcuffed. (R.

2989). While Detective Lang was on the

telephone, the defendant indicated to

Detective Betts that he no longer wished to

talk to the police. (R. 2996).

In the presence of the Defendant, the

detectives negotiated a consent to search

the home with Alene and her. mother.

(R.3001). The defendant first objected to

the search, but after the police were able

to secure permission from Alene and her

mother, he was persuaded to consent. (R.

3001-3003). The search netted a pair of

tennis shoes, a baseball cap, and clothes.

(R. 3002-3005).

The officers then went to interview

additional witnesses with the defendant in

the back seat of the car. (R. 3008,

3023). The officers and the defendant had

a conversations on a variety of subjects.

(R. 3025). Detective Lang finally

requested the defendant to decide if he

still wished.to no longer talk with then.

(R. 3026). The defendant then agreed to

talk to the police. (R. 3026). The

defendant was not re-Mirandized. (R.

3026). The officers then questioned the

Defendant about the blood on the car. (R.

3028). The defendant indicated that he

believed that the blood had come from when

the victim had been helping him fix his car

on the preceding Saturday. (R. 3028).

While investigating an_ unrelated

automobile personal injury accident, the

defendant was handcuffed. (R. 3043). The

defendant was then transported to the

Morgan County Jail where two taped

statements were taken from the defendant.

(R. 3046-3048).

In interviewing additional witness,

the officers learned that the victim had

engaged in sexual relationships

approximately 72 hours before her death

with her boyfriend, Charles Mathews. (R.

3339).

On September 17, 1991, the Court

granted a Search Warrant for the

defendant’s vehicle (R. 6219), and for the

defendant’s person. (R. 586).

Defendant filed his Offer to Prove

Pursuant to I.C. 35-37-4-4, (Appendix p.47-

eK

49} Brief in Support, (Appendix p. 50-71),

(see also, Brief of Appellant, Sections v

through IX); along with the deposition of

Charles Mathews. (R. 832, 1010); (Appendix

p. 75). The court, after hearing excluded

all evidence of past sexual relationships

of the victim except for the specific

instance with Mathews which occurred on

Thursday. (R. 706); (Appendix Pp. 72-74).

On February 25, 1992, defendant filed

his Motion to Suppress DNA evidence

Claiming that introduction of the evidence

would violated his rights of confrontation

and cross-examination. (R. 7O2A, 4249-

4250); (Appendix p. 76-78). The State

admitted that the F.B.I. refused to make

its technician, who conducted all of the

steps of the DNA testing procedure except

for the analysis of the results, available

to testify at trial. (R. 4254-4255). The

court, after hearing, denied defendant’s

Motion. (R. 4403); (Appendix p. 79-81);

(see also, Brief of Appellant, Sections I

through IV).

On March 30, 1992, the trial began.

(R. 7). At trial, the State offered the

tape statements of the defendant. (R.

8083, 8175). The defendant objected to

their introduction on Fifth Amendment

grounds. (R. 10390-10391); (Appendix p.

82-83); (see also, Brief of Appellant,

Section X). The court, after a hearing out

a

of the presence of the jury admitted the

tapes over the objection of the defendant.

(R. 8083, 8187); (Appendix p. 82).

During trial the defendant sought to

produce evidence of past sexual activity of

the victim as exculpatory evidence. (R.

7896-7898). The court refused to admit the

testimony. (R. 7898).

10

|

During trial, the State offered

results of DNA tests. (R. 8672).

Defendant objected to such results on the

grounds that the failure of the State to

present the technician who had conducted

the tests violated defendant’s rights of

confrontation and cross-examination. (R.

8579). The court denied defendant’s

objections. (R. 8592).

During trial, defendant presented two

expert witnesses which disputed the

reliability of the DNA testing results (R.

9528-9583, 9190-9271). along with the

National Academy of Sciences Report which

was critical of the methodology employed by

the FBI. (R. 9817-9930). Dr. Mueller

testified as to the great controversy in

the scientific community on the issue of

population genetics. (R. 9873-9883, 9132,

8980). He further testified ws to a

11

potential 2% false positive rate in the DNA

testing procedure. (R. 9570).

Dr. Randall Libby testified as to

potential errors which could have been made

by the technician that the supervisor would

not be able to detect after the fact. (R.

9432, 9434-9435). He further testified as

to a potential error in the Q-6 semen

sample in this case which could only be

refuted by the technician who conducted the

test. (R. 9526-9527).

At the conclusion of the trial, the

jury found the defendant guilty on all

counts. (R. 1060123). The court then

conducted a Habitual Criminal Trial, and

the jury found the defendant guilty of

being a habitual criminal. (R. 10321).

At sentencing, the court sentenced the

defendant on Count I, Murder to a term of

sixty (60) years, enhanced by a thirty (30)

12

year term for being a habitual criminal.

(R. 10-11). This term was consecutive to

Count IV, Rape, upon which the defendant

was given a twenty (20) year term. (R. 10-

11).

13

I. WHETHER THE TRIAL COURT’S ERROR IN

REFUSING TO PERMIT THE DEFENDANT TO PRESENT

PAST HABITUAL SEXUAL PRACTICES OF THE

VICTIM AS EXCULPATORY EVIDENCE VIOLATES

DEFENDANT’S RIGHTS UNDER THE COMPULSORY

PROCESS CLAUSE AND THE CONFRONTATION CLAUSE

OF THE SIXTH AMENDMENT

In this case the defendant sought to

introduce evidence that the victim often

engaged in consensual sexual activity while

partially clothed. (R. 7896-7997). The

deposition of Charles Mathews, Exhibit 408,

was proffered under I. C. 35-37-4-4 and

included his testimony that the victim

often had sex while partially or fully

clothed. (R. 7950).

14

It is important to note that the case

against the defendant on the charges of

Rape and Child Molesting is entirely

circumstantial. One of the cornerstones of

the state’s case on these charges was

succinctly stated by the Prosecutor during

Final Argument:

There was no reason for Jennie

Whitman’s clothes to be the way they

were unless, of course, it was forced.

(R. 9995). see also R. 7896-7897.

In making such a statement, the State

was inviting the jury to make a false

assumption; that the victim would not

engage in consensual sexual activity unless

she disrobed. This was not in fact the

case. The only evidence before the court,

which the defendant sought to introduce to

rebut the erroneous inference, was that the

victim did in fact engage in consensual

sexual activity while partially clothed.

15

(R. 7950). To allow the State to invite a

false conclusion, and then to allow the

State to hide behind the Rape Shield

Statute is particularly problematic.

Failure to allow such evidence limited

the defendant’s rights to present

exculpatory evidence. "The history of the

accused’s right to present a defense,

including the right to introduce evidence,

‘is the story of the development of the

adversary process and the demise of the

inquisitorial method." J. Imwinkelried,

; — Evid 07. (1990) (citi )

Westen, The Compulsory Process Clause 73

Mich. L. Rev 71, 177 (1974). Additionally,

the United States Supreme Court has held

that the Fourteenth Amendment guarantees of

Due Process incorporates the Compulsory

Process guarantees of the Sixth Amendment.

Washington v. Texas, 388 U.S. 14, 87 S.Ct.

16

1920, 18 L.Ed.2d. 1019, (1967). In writing

for the Court in that decision, Chief

Justice Warren further asserted that an

accused has a constitutional right to

present witnesses to establish a defense,

as a part of his compulsory process

guarantee. Id. at 19.

The doctrine set forth in Washington,

po. was extended to technically

inadmissable hearsay evidence in Chambers

v. Mississippi, 410 U.S. 284, 93 S.Ct.

1038, 35 L.Ed.2d. 297 (1973), when the

Court found that although the proffered

evidence sought to be admitted did not fit

within the state’s hearsay doctrine, the

testimony was so reliable and crucial that

it’s exclusion violated the principles of

Washington. Further, it found that the

right precluded trial judges from

mechanistically applying evidentiary rules

17

to preclude reliable, and vitally necessary

defense evidence. Id. at 302-303; see e.g.,

Rock v. Arkansas, 483 U.S. 44, 97 S.Ct. 37,

107 L.Ed.2d. 2704, (1987).

Although in Washington, 388 U.S. 44,

87 S.Ct. 1920, 18 L.Ed.2d. 1019, (1967),

the Court relied on the compulsory process

Clause as a source for the accused’s

constitutional right to present evidence,

the Court has also used the confrontation

Clause to support that right. In Davis v.

Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39

L.Ed.2d. 347, (1974), the issue related to

evidence of a witness’ past juvenile

record, something which was considered

confidential by state statute. The

defendant sought to admit this evidence so

show possible bias on the part of the

witness. While the Court conceded that the

State’s interest in maintaining the

18

confidentiality of juvenile proceedings was

legitimate and important, on the facts of

the case, the Court concluded that

exclusion of the evidence violated the

accused’s confrontation right, which was

paramount, despite the state’s lawful

interest.

Davis, Id., was reaffirmed by the

Court when it decided Qlden v. Kentucky,

488 U.S. 227, 109 S. Ct. 480, 102 L.Ed.2d.

513, (1988). In Olden, the defense sought

to admit evidence supporting its theory

that the white complaining witness had

fabricated a rape charge against the black

defendant to protect her romantic interest

with another black man. At trial the

evidence had been excluded because of the

risk that the jury would improperly reject

her testimony because of bias = about

interracial relationships. The Court found

19

that exclusion of this testimony was

constitutional error, citing to Davis, 415

U.S. 308. Olden, 488 U.S. at 231.

In Commonwealth v. Appenzeller, 44

Crim. L. Rep. (BNA) 2161 (Pa. Super. Ct.,

Nov. 2, 1988), withdrawn Jan. 17, 1989, but

see, Commonwealth v. Appenzeller, 46 Crim.

L. Rep. (BNA) 1104 (Pa. Super. Ct., en

banc, Oct. 16, 1989), the court did find

that the accused’s confrontation right

prevailed over the rape shield

proscriptions. The court made its decision

by finding that the accused’s

constitutional right to introduce evidence

of the young complainant’s sexual activity

to dispel any improper inference by the

jury about her knowledge of sexual matters,

was warranted.

Similarly, in State v. Pulizzano,

(1988), 148 Wis. 2d 190, 434 N.W.2d 807,

20

the court utilized Davis, 415 U.S. 308, and

accepted the defense argument for admission

of this type of evidence, after balancing

the policy supporting the Rape Shield Law

against the defendant’s need for the

evidence. Pulizzano, 434 N.W.2d at 812.

The court found that the accused should be

permitted to conduct "limited inquiry into

the prior sexual assault for the purpose of

negating the inference that M.D.’s sexual

knowledge was gained from the alleged

assault by Pulizzano." 14. -@& .612,. .3m

spite of the proscriptions of a Rape Shield

Law which were very similar to those of

Indiana.

A New Hampshire court ruled in accord

with Wisconsin, in State v. Howard, (1981),

121 N.H. 53, 426 A.2d 457, a case involving

statutory rape, when it found that the

defendant’s confrontation right precluded

21

that judge from automatically barring

defense evidence of the sexual knowledge of

the complaining witness. In reaching it’s

decision, the court noted that average

jurors would probably assume that a twelve

year old girl was sexually innocent, and

therefore it was probable that they would

believe that unless the offense charged

occurred, she would not have this

knowledge. Id. at 462.

A similar holding was also made by the

court in State v. Jacques, (1989), Me., 558

A.2d 706, where the court noted that the

Rape Shield Law and the policy underlying

it "must be weighed against the defendant’s

constitutional right of effective cross

examination and to present a= proper

defense". in. a YWers The court

additionally concluded that it was a matter

of constitutional right that "Ta]

22

defendant. . . must be permitted to rebut

the inference a jury might otherwise draw

that the victim was so naive sexually that

she could not have fabricated the charge”.

Id. Furthermore, the court added that "[a]

number of jurisdictions have recognized the

accused’s constitutional right to surmount

Rape Shield Law "for the limited purpose of

rebutting the jury’s natural assumption

concerning a child’s sexual innocence. . .

*.. we

Finally, the 7th Circuit Court of

Appeal recently ruled that the Indiana Rape

Shield Statute unconstitutionally violated

a defendant’s right to present exculpatory

evidence in the case of Tague v. Richards,

3 F.28@- 1133,.- (32993). This is the exact

same argument presented in this case.

The evidence offered was. highly

reliable in that the evidence came from the

~

23

boyfriend of the victim, a witness adverse

to the defendant. Failure of the court to

allow the defendant to present exculpatory

evidence of this nature violated

defendant’s constitutional rights,

requiring a reversal of his convictions.

II. WHETHER THE TRIAL COURT’S ERROR IN

APPLYING THE INDIANA RAPE SHIELD STATUTE TO

A DECEASED VICTIM VIOLATES THE DEFENDANT’S

DUE PROCESS RIGHTS OF THE FOURTEENTH

AMENDMENT AND THE CROSS-EXAMINATION RIGHTS

OF THE SIXTH AMENDMENT.

In this case, the defendant sought to

present evidence of the past sexual history

of the victim to rebut the inference that

the state of the victim’s clothes would be

inconsistent with consensual sexual

relations. (R. 7896-7898). The Trial Court

24

ruled such evidence inadmissable. (R.

7898).

Not allowing the defendant the right

to present evidence of this nature is

particularly troublesome where the

exclusion of such evidence is not violative

of the underlying premise of the Rape

Shield Statute; the protection of the

victim while testifying, of embarrassment

or harassment, or the fear that the

introduction of such evidence would reduce

the likelihood that the victim would report

such an offense. Stephens v. Morris, 756

F.Supp 1137, (N.D. Ind., 1991). Absent a

reasonable rationale for excluding what was

extremely probative evidence which tended

to rebut an erroneous conclusion, there was

no good reason for excluding the evidence.

In addition, the refusal to allow this

evidence violates the doctrine set down in

25

ruling precedents of the U. S. Supreme

Court which prohibits the barring of

relevant, reliable defense evidence under

the rubric of technical evidentiary rules.

Chambers v. Mississippi, 410 U.S. 284, 93

§.Ct. 1038, 35 L.Ed.2d. 297, (1973).

In Chambers, this court stated:

The right of an accused in a

criminal trial to due process is, in

essence, the right to ae fair

opportunity to defend against the

State’s accusations. The rights to

confront and cross-examine witnesses

and to call witnesses in one’s own

behalf have long been recognized as

essential to due process.

Chambers at 295.

The right to confront and cross-

examine is not absolute and may bow. in the

proper case, to other legitimate interests

in the criminal trial procedure. Berger v.

California, 393 U. S. 314, 89 S. Ct. 540,

21 L. Ed. 508, (1969); Maryland v. Craig,

497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d.

26

666, (1990).

However, the denial or significant

diminution of this right undermines the

integrity of the fact finding processes and

requires a close examination of the

compelling state interest. Berger v.

lif ia; Cham wiasiesinni .

In this case, there is no compelling

state interest to be served in the

exclusion of this evidence where the victim

is deceased. Not allowing the defendant to

present such evidence to rebut an incorrect

inference, where there is no countervailing

reason to the contrary, violated the

Defendant’s Due Process Rights of the

Fourteenth Amendment and Cross-Examination

Rights of the Sixth Amendment.

Iil. WHETHER THE TRIAL COURT ERROR

PERMITTING THE F.B.I. SUPERVISOR TO TESTIFY

27

CONCERNING DNA TEST RESULTS, WITHOUT

REQUIRING ANTECEDENT TESTIMONY OF THE

TECHNICIAN WHO ACTUALLY PREFORMED THE TEST,

VIOLATED DEFENDANT’S CONSTITUTIONAL RIGHT

OF CONFRONTATION AND CROSS~-EXAMINATION

GUARANTEED BY THE SIXTH AMENDMENT.

Amendment VI of the U. Ss.

Constitution states:

In all criminal prosecutions, the

accused shall enjoy the right to. .

- be confronted with the witnesses

against him;

The State’s failure to present the

technician who performed the "hands on"

portion of the DNA testing procedure,

denied the defendant the right to confront

and cross-examine the adverse witness as to

the exact methodology used in conducting

the tests. The evidence before the court

was that the DNA analysis was conducted by

28

a two person team at the F.B.I. (R. 8724-

8735). Technician Rich Deeter, who was not

called to testify conducted Sections I-XIV

of the protocol, which consisted of the

actual manipulation of the samples

themselves to produce the autorads. (R.

8724-8735). Supervisory Agent Robert

Coffin, who was called as a witness by the

State conducted Section XV of the protocol

which is a statistical analysis of the DNA

testing procedure which was done by Deeter.

(R. 8724-8735).

This Court has observed that, " the

Confrontation Clause guarantees the

defendant a face-to-face meeting with

witnesses appearing before the trier of

fact." Coy v. Iowa, 487 U.S. 1912 at 1016,

102 S.Ct 2798 at 2800, 101 L.Ed. 857,

(1988). This Court has previously visited

the question of the degree to which the

29

Confrontation Clause requires direct, face-

to-face confrontation of 3a witness.

Maryland v. Craig, supra. The right of

confrontation:

(1) insures that the witness will give

his statements under oath - thus

impressing upon him the seriousness of

the matter and guarding against the

lie by the possibility of a penalty for

perjury; (2) forces the witness to

submit to cross-examination, the

"greatest legal invention ever invented

for the discovery of truth"; [and] (3)

permits the jury that is to decide the

defendant’s fate to observe’ the

demeanor of the witness in making his

statement, thus aiding the jury in

assessing his credibility.

Green v. California, 399 U.S.149 at 158, 90

S.Ct. 1930 at 1935, 26 L.Ed.2d 489, (1970).

In this case, the Defendant presented

evidence that an error by Mr. Deeter may

have occurred during the testing procedure

with the critical Q6 female specimen. Any

number of potential errors might have been

committed by Mr. Deeter resulting in the

30

anomalous Q6 female result. Only Mr.

Deeter could be adequately confronted and

cross-examined about this test since only

he would have knowledge of the exact

procedure employed by his in this case, and

the likelihood that an error consistent

with the Q6 result had occurred.

The State presented no compelling

interest in failing to present Mr. Deeter

making the rights of the Defendant to

adequate confrontation and cross-

examination bow to legitimate necessity of

the criminal trial procedure. Maryland v.

Craig, 110 S. Ct at 3166.

Failure to present the technician who

performed the tests deprived the defendant

of his rights to confront and cross-examine

adverse witnesses, as provided by the State

and Federal Constitutions. As such, the

court was in error in allowing such

31

testimony into evidence requiring a

reversal on all counts.

IV. WHETHER THE TRIAL COURT’S ERROR IN

ALLOWING THE INTRODUCTION OF THE

DEFENDANT’S STATEMENT AFTER HE HAD INFORMED

THE POLICE THAT HE NO LONGER WISHED TO

SPEAK WITH THEM VIOLATED THE DEFENDANT’S

FIFTH AMENDMENT RIGHT £=AGAINST SELF-

INCRIMINATION.

Early on in the questioning process,

the defendant informed police that he no

longer wished to answer any further

questions. (R. 6495). A variety of

conversations, nevertheless, occurred after

the request by the defendant that he no

longer wished to talk. All of these

conversations and questions with Officers

Lang and Betts occurred without them re-

32

_ owt | ei te

Mirandizing the defendant. (R. 6505-6506).

Several hours thereafter, the

defendant was taken to the County Jail at

which time taped statements were taken from

the defendant after new Miranda warnings.

(R. 6505-6506). These statements (exhibits

126 and 128) were played to the jury over

defendant’s objection. (R. 8083, 8187).

At the time of the original request by

the defendant to cease questioning, the

defendant was placed in the back of the

police car. (R. 6452). He was. then

transported by the pclice officers as they

made the rounds of their investigation and

was asked various questions by the police

officers. (R. 6470-6476, 6486). At some

time during the process, the conflicting

evidence was that the defendant was placed

in handcuffs when the officers had to

investigate an unrelated traffic accident.

33

(R. 6487).

In this case, the defendant informed

the police that he no longer wished to talk

to them. (R. 6495). Shortly thereafter

the police were able to persuade him to

consent to a search of his residence, (R.

6504-6505) and thereafter were able to get

two tape recordings after new Miranda

warnings. (R. 6505-6506). These statements

(exhibits 126 and 128) were played to the

jury over the objection of the defendant.

(R. 8083, 8187).

In Miranda v. Arizona, 384 U.S. 436,

86 S.Ct. 1602, 16 L.Ed.2d 694, (1966),

Once warnings have been given, the

subsequent procedure is clear. If the

individual indicates in any manner, at

any time prior to of during

questioning, that he wishes to remain

silent, the interrogation must cease.

At this point he has shown that he

intends to exercise his Fifth Amendment

privilege; any statement taken after

the person invokes his privilege cannot

be other than the product of

34

compulsion, subtle or otherwise.

Miranda, 384 U.S. at 473.

The extent to which the right

continues is judged upon a standard of

whether his exercise of the right has been

"scrupulously honored". A simple review of

the actions of the officers in this case

shows that they, by subtrafuge, indivect

coercion, and questioning, were able to

convince the defendant to allow them to

resume questioning. These actions do not

rise to the level of a "scrupulously

honored" right making the introduction of

the statements a violation of Defendant’s

Fifth Amendment rights.

CONCLUSION

Based upon the foregoing, the

Petitioner respectfully requests this Court

to grant Certiorari to decide the important

x

Federal Questions presented, and to clarify

conflicting decisions of the lower courts.

Respectfully submitted,

William Van Der Pol, Jr.

P.O. Box 1799

Martinsville, IN. 46151

Counsel for Petitioner

36